June 20, 2011

First Amendment Veterans Weigh In on Free Speech in the Roberts Court

Looking back at the first five years of the Supreme Court under Chief Justice John Roberts, former U.S. solicitor general Paul Clement said that in First Amendment cases, the court has shown "coherence" in its rulings - assuming one considers campaign finance cases separate from all the rest.

Speaking on a panel Saturday during the American Constitution Society's annual conference, Clement said he believes the high court under Roberts has applied strict scrutiny of the First Amendment, leading to its support of broadening speech in campaign finance cases – as it did in Citizens United – while supporting limits on other speech that may not present as "pure" of a First Amendment claim.

From a former advocate’s perspective, he said, a party’s likelihood of success will depend on “whether you convince the court…that this is a real or pure First Amendment claim.”

Clement, who recently left King & Spalding for Bancroft, was joined on the panel by First Amendment veteran Floyd Abrams, a partner at Cahill Gordon & Reindel who argued on behalf of Citizens United; Judge Marsha Berzon of the U.S. Court of Appeals for the Ninth Circuit; Columbia University President Lee Bollinger; New York Law School and former ACLU President Nadine Strossen; and Monica Youn, who directs the campaign finance reform project at New York University School of Law’s Brennan Center for Justice.

New York Times Supreme Court reporter Adam Liptak moderated the discussion for the left-of-center American Constitution Society, which celebrated its 10th anniversary this year.

Abrams said he was disturbed by opposition to the court’s decision, which opened the door to campaign spending by corporations and other entities. People who “care deeply, passionately” about the First Amendment should be in favor of more speech, he said.

When the conversation turned to the court’s response to national security issues, Abrams, who famously defended the New York Times in the Pentagon Papers case, said he thinks the Roberts court has shown more deference to the executive branch.

Referring to the 2010 ruling in Holder v. Humanitarian Law Project, which upheld a law banning “material support” of terror groups, Abrams said that “if they’d been doing it this way [in the Pentagon Papers case], they might not have gone our way.”

Bollinger said he believes the court has offered narrow, “almost sterile” affirmations of free speech. He said he would like to see more sweeping, big-picture statements, especially to counter the strong arguments in favor of limiting speech coming from Justice Samuel Alito.

Comments

Alito's opinion was that the intentional infliction of emotional distress on a family at the funeral of their loved one is not First Amendment protected speech. What should be of more concern is that four so called liberal justices believe government should be allowed silence criticism of politicians during an election campaign. Which is more in accord with what the founders wanted protected?